Convening Authority and Legal Adviser for Military Commissions Removed From Office

Sarah Grant
Tuesday, February 6, 2018, 3:30 PM

The Pentagon announced Monday that Harvey Rishikof, convening authority for the military commissions, and Gary Brown, legal adviser to the convening authority, were relieved of their duties, as Carol Rosenberg of the Miami Herald first reported.

Published by The Lawfare Institute
in Cooperation With

The Pentagon announced Monday that Harvey Rishikof, convening authority for the military commissions, and Gary Brown, legal adviser to the convening authority, were relieved of their duties, as Carol Rosenberg of the Miami Herald first reported. The personnel changes come one week after President Trump issued an executive order reversing the Obama administration’s efforts to close the Guantanamo Bay military detention facility and ordering Defense Secretary James Mattis to recommend new policies regarding the disposition of individuals captured in connection with an armed conflict. No reason was given for the firings, but Rishikof’s brief tenure has been marked by controversy.

Mattis appointed Rishikof—a leading national security lawyer who had no prior military experience—as the convening authority in April 2017. The Obama administration reportedly selected Rishikof, but his appointment was delayed until after Mattis’s confirmation. The convening authority is responsible for the overall management of the military commissions process, including convening military commissions, referring charges to trial, negotiating pre-trial agreements, reviewing trial records, and overseeing logistics and personnel issues related to the commissions.

It has been an eventful 10 months since Rishikof took office. In October, all three civilian defense attorneys for alleged USS Cole bomber Abd al-Rahim al-Nashiri, including his death penalty learned counsel, left the case over alleged intrusions of attorney-client confidentiality by unspecified government agencies. Later that month, the judge in the al-Nashiri proceedings, Air Force Col. Vance Spath, found the military commissions chief defense counsel, Marine Corps Brig. Gen. John Baker, in contempt for releasing the civilian attorneys without authorization and for refusing to testify in court about his decision. Spath fined Baker $1,000 and ordered him to be confined to quarters at Guantanamo for 21 days. On Nov. 2, Baker filed a habeas petition with the D.C. federal district court, challenging the contempt finding and his confinement. While that motion was pending, Rishikof intervened and deferred the remainder of Baker’s sentence until final action was taken on the matter, prompting Judge Royce Lamberth of the District Court for the District of Columbia to decline to act until after Rishikof’s review. On Nov. 21, Rishikof issued his final judgment upholding the contempt charges but remitting the fine and remaining term of confinement. In that memo, Rishikof acknowledged the concerns about intrusions upon attorney-client confidentiality that precipitated the events at issue, called for expedited declassification of relevant documents, and recommended that the Joint Detention Group designate or construct a new “clean” facility to restore confidence in the privacy of communications. The contempt finding against Baker remains the subject of ongoing litigation.

In December, chief prosecutor Brig. Gen. Mark Martins recommended new charges against Riduan bin Isomuddin, an al-Qaeda affiliate alleged to have organized a series of 2002 bombings in Bali, Indonesia, as well as alleged co-conspirators Mohammed Nazir bin Lep and Mohammed Farik bin Amin. But Rishikof, who as convening authority must approve a case before it can go forward, rejected the charges due to an unspecified procedural issue.

Following Rishikof’s removal, Mattis designated Jim Coyne, a retired Army colonel who is general counsel of the Defense Logistics Agency, as the acting convening authority. Defense Department acting general counsel William Castle appointed Mark Toole, the former deputy legal adviser to the convening authority, as the acting legal adviser for all military-commission cases except the death penalty trial of al-Nashiri. Castle appointed Col. Matthew van Dalen, former assistant legal adviser to the convening authority, as acting legal adviser for the al-Nashiri commission. The Pentagon also pledged there would be no impact on current proceedings in the commissions.

Sarah Grant is a graduate of Harvard Law School and previously spent five years on active duty in the Marine Corps. She holds an MPhil in International Relations from the University of Cambridge and a BS in International Relations from the United States Naval Academy. The views expressed here are her own and do not reflect those of the Department of Defense, the Marine Corps, or any other agency of the United States Government.

Subscribe to Lawfare